Evidence-Wellborn SU2006 Outline

704b only in federal rules expert cannot state an

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Unformatted text preview: . Not the drafter's finest hour...should have addressed this. Courts have had to go back to first principles in answering this question. What Arkansas says in Schell (especially if you throw in the concurring opinion) is the answer that all courts gave: Logically you can elicit otherwise inadmissible answers on direct to show the opinion, subject to rule 403 (as are all limited admissibility questions). The court, if requested by the opponent, can apply 403 and weigh the probative value of the otherwise inadmissible stuff for this purpose of showing the basis of the opinion, against the danger that the jury will not be able to obey the limiting instruction, and take it to the bank. After a number of years Federal Rule 703 was amended in 2000 (see note 5 on page 458), reverses the balancing test and puts the burden on the proponent to prove that the probative value outweighs the prejudice. Reverses the presumption of admissibility. Why did they do this? Worries that experts will be used to admi...
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